EXTRAMARITAL SEX ISN'T CONSTITUTIONAL RIGHT, MAGISTRATE SAYS

Illicit, extramarital sexual behavior is not a constitutionally protected right, a federal magistrate said Friday in a 33-page opinion supporting Utah's sodomy law.

The state law was challenged in 1988 by the American Civil Liberties Union and Gary Oliverson, a West Valley City police officer who was suspended for engaging in sexual acts with two female members of the West Valley Police Explorer Post 965.Oliverson, who was married at the time, said the behavior - which he admitted - was private and consensual. And he and the ACLU argued that the state law that officials used in the imposition of sanctions against him violates his constitutional right of privacy.

"The state has an interest in promoting family values and marriage stability. It also has an interest in preventing various sexually transmitted diseases," responded U.S. Magistrate Ronald N. Boyce. "Each of these justifies prohibiting a married person from engaging in an act of sodomy with an unmarried partner."

Boyce's detailed analysis of the legal issues in the case also refuted the contention that the state's sexual conduct law violates the equal protection clause of the Constitution by establishing different standards for married and unmarried individuals.

"The rationale of deterrence of persons from engaging in extramarital sexual relations is a proper application of state authority. Contramarital affairs, unlike the relationship between married adults, do have a potential to inflict greater harm," Boyce wrote.

The issues were first raised in 1986, when Oliverson was suspended for 30 days without pay by former West Valley police chief David Campbell. A notation of his conduct was also included in his personnel and Peace Officers Standards and Training files.

In 1987, a citizen action seeking Oliverson's removal from the police force was filed in 3rd District Court. That suit was dismissed on grounds the law governing removal of officials from office doesn't apply to police officers.

Oliverson said in his federal suit that he feared additional sanctions from West Valley City and perhaps even criminal prosecution by the Salt Lake County attorney's office if he engages in the same behavior in the future.

"He essentially claims a right to privacy to engage in acts of sodomy and seeks this court to approve of his actions beyond the past factual circumstances of (his) conduct," Boyce wrote.

According to the magistrate, the only issue Oliverson can raise is whether Utah's law can be applied to prevent a married person from committing sodomy with someone other than that person's spouse.

Addressing that issue, Boyce said laws prohibiting consensual commerical sex and other types of sexual conduct have been upheld. And he cited the 1986 U.S. Supreme Court case of Bowers vs. Hardwick, which held that there was no right of consenting adults to engage in homosexual acts in private.

The Supreme Court ruled that there was no connection between the rights of privacy associated with "family, marriage or procreation" on the one hand and homosexual sodomy on the other, Boyce said.

"The same conclusion exists as to extramarital sodomy," he added. "Sodomy, out of wedlock, cannot be considered a `fundamental right' protected by the due process clause."

Basing his opinion on the Bowers case, Boyce concluded that the Utah law "could be and was properly applied" to Oliverson.

The magistrate's report will be submitted to U.S. District Judge David Sam, who can adopt it as written, modify it or reject it.